I recently attended the 57th annual ARMA conference in Chicago on September 23 – 25th. I have always had a soft spot in my heart for information governance because of the close relationship between eDiscovery and records management. They both seek to intelligently mine an organization’s data and put it into a meaningful structure. They also face similar challenges of overcoming the sheer massive volumes of information.

A big difference between the two is that records management is critical to an organization’s ability to manage their business through transactions, mergers, turnovers, and also dispute situations like litigation. Once litigation occurs, records managers are often included in the process to help figure out where the potentially responsive ESI resides. As a result, litigation is really a subset of the role of records management within a company. This is a topic I recently covered on an ESIBytes podcast called “Information Governance Tips Which Benefit E-Discovery,” with a collection of lawyers and technologists.

As I read some of the commentary I have seen posted on Kleen Products, I felt compelled to weigh in as an industry participant closely involved with predictive coding. Kleen Products was a useful case for a number of reasons.

First the case showed us that a party which educated themselves on information retrieval was willing to go into court and argue that parties should have to use technology to improve the search and retrieval of responsive ESI. Having witnessed some of the hearings first hand, I believe the plaintiffs were genuine in their desire to have the defendants move beyond keyword searching because they were and probably still are deeply concerned that they will have a hard time finding what they need from key word and Boolean searches supplemented with some concept searches. The reality is it was a tremendous burden faced by the Kleen Products plaintiffs to argue that the defendants in Kleen Products should have done something different from what lawyers have traditionally done with key words, especially when these defendants had already reviewed millions of documents after key word searching.

One of the most interesting predictive coding cases going on right now is In Re: Actos (Pioglitazone) Products Liability Litigation (United States District Court of Louisiana MDL No. 6:11-md-2299). The complexion of the case recently changed as the parties who originally agreed to use predictive coding (and in an innovative twist to even train the predictive coding software together) are now fighting over what the results mean. According to court documents filed by both parties (all available on the PACER website), the cooperation experiment is over and both sides are unable to find common ground to resolve their dispute over how next to proceed with the predictive coding results (see Defendants’ Opposition to Plaintiffs Motion to Compel Production of Documents (“the Defendants’ Brief”) and the Plaintiffs’ Steering Committee’s Motion to Compel Production of Documents and Memorandum to Support (the “Plaintiffs Brief”)). Read More

On April 19th, 60 invited delegates convened on Washington, DC with the Federal Rules Committee to discuss Technology Assisted Review. The object of the meeting was to have the delegates give their perspectives on whether the Rules currently being readied for public comment should incorporate changes that take into account the unique needs of TAR. My overall conclusion is that the Duke Conference was an outstanding event and it went along way to show that attorneys need more transparency when using TAR or it becomes very hard for parties to effectively cooperate. Read More

When we lost access to a server with all of our blog posts, it gave us the opportunity to re-post archival material and look back on it from today’s perspective. This was one of our funnier marketing events as we actually held a protest at Legal Tech about the lack of acceptance of predictive coding. We were written up in LTN so to some extent it was a success. The bigger success came later in the year when the material we were compiling and workflows we were advocating for, were actually used in the Global Aerospace case.

Occupy Legal Tech Protest 2012

Today we are less radical and spend some of our free time education lawyers on how to use and validate predictive coding results in the Predictive Coding Thought Leadership Series tour traveling around the country. Enjoy this humorous post from 2012…. Read More

After losing the server on a cloud service which contained my docreviewmd blog posts, I am attempting to update my blog site with what I have from the collection saved on my hard drive. Then like a re-issue of a CD collection in a box set, I am updating the liner notes with new introductions. I believe more than ever that the thesis of this post pointed out in my Legal Hydra article published in Forbes remains true today. Lawyers are still trying to solve technology problems with law. This is one reason we launched the Predictive Coding Thought Leadership Series tour in 2013 to teach lawyers how to measure the effectiveness of predictive coding results through sampling.

This blog post is also eventful right now because Jason Baron just left his government post and joined up with some good friends of mine at Drinker Biddle. I expect that Jason will continue his good work though the billable hour may curtail his ability to continue preaching the gospel. Let me be the first to say that I hope it doesn’t. But good luck Jason with your new position and best of luck. ….. Read More

Losing my server and with it the original DocReviewMD blog posts has given me the opportunity to repost and revisit the posts I have been able to locate and re-issue them. This was not my favorite post because it was a response to the mud slinging which occurred in da Silva Moore. My original draft posting never saw the light of day. To put it mildly, I was incensed at the personal attacks made in this case which time has shown were highly ineffective. There is no vendor conspiracy in this field. Judges who offer their time to educate are doing just that, educating. Education remains the biggest challenge in the advancement of document review and that is why we launched the Predictive Coding Thought Leadership Series which has the involvement of many judges who are all freely donating their time to help educate lawyers on their reaction to new technology like predictive coding. Enjoy…. Read More

Since my server died with the entire collection of DocReviewMD blog posts, I figured I would update these posts based on where the predictive coding field is today and treat these posts as a re-release. I remember drafting this post last year when I thought rather naively that we had just changed the litigation world. Global Aerospace then continued with the predictive coding process being run, meet and confers with the opposing lawyers, and an agreement to produce the documents we coded using predictive coding. While the case eventually settled, Global Aerospace for me stands as the best example of a successful predictive coding case. We got the order we needed to use the process when opposing counsel wouldn’t agree to use predictive coding. We then ran the software program and trained it using an expert reviewer who was a partner in the law firm’s construction litigation group. We stabilized the tool then met with opposing counsel and talked through how we coded documents including sharing the null set. Opposing counsel disagreed on a small number of documents we had coded not responsive. We added these documents into the language model and pushed the button. No other case has made it this far. I believe it was the transparent approach we followed to make discovery about getting agreement on the process which is best accomplished when you are transparent. Contrast that with Da Silva Moore which is still an ongoing case, and you can get a sense of how successful we were. The end result is we culled the 1.3 million documents in the collection to 200,000 documents with family members included and got the review done with a handful of attorneys. A great outcome which resulted in two Wall Street Journal articles. Yet for some reason today, the acceptance of predictive coding hasn’t taken off. Which is one reason why we have been touring the country offering inexpensive CLE’s through the Predictive Coding Thought Leadership Series on how to validate predictive coding results. Read on and enjoy…. Read More

When a server crashed and I lost my many of my original blog posts, it gave me the opportunity to update the DocReviewMD posts and look back. Sorry to say, I have been unable to locate the first da Silva Moore blog post but I will keep looking. Today that case continues to grow and has become a battle between experts. In essence it is a train wreck. But this is no surprise as it is the first case using predictive coding and there are many issues surrounding the use of these tools which we are still figuring out. That is the basis of the 2013 Predictive Coding Thought Leadership Series I have been touring the country with in 2013. But it is fun to look at the back catalogue on what we were saying back in early 2012 about these tools. Enjoy….. Read More

Kleen Hearing Day Two – The Battle of Boolean Searches versus Sampling and Predictive Coding and Attacking Expert Witnesses

Losing my entire collection of blog posts due to a server error has allowed me to revisit the posts I could find on my hard drive and update them like artists do with box collections. So this first paragraph updates the blog post. I actually updated this post with an eDJ Group post last year when the Kleen Products litigants agreed to cooperate and continue the current Boolean Searches. Many pundits claimed a victory for the anti-predictive coding camp. I said it was an uphill battle for the plaintiffs because of the burden changing in mid stream a review approach that the Defendants’ had been using across 6 defendants. I was thrilled to get to watch this argument first hand but the real challenge today isn’t the arguing the process. It is that lawyers do are not yet comfortable on how to validate these tools to even propose in large numbers that they start using predictive coding. That is the purpose behind the Predictive Coding Thought Leadership Series which I have been touring the country and leading a CLE programs on validation and statistics. So enjoy my accurate assessment of this case, though I admit I overstated the pace of future change to predictive coding…. Read More